INTERNATIONAL LAW 

AND THE 

Discriminations Practiced by Russia 

UNDER THE 

TREATY OF 1832 


ARTHUR K. KUHN 


Prepared by request for the Board of Delegates on Civil Rights of the Union 
of American Hebrew Congregations and the Independent Order B’nai B’rith. 




• • 



INTERNATIONAL LAW 

AND THE 

Discriminations Practiced by Russia 


UNDER THE 


TREATY OF 1832 


ARTHUR K. KUHN 

M 



Prepared by request for the Board of Delegates on Civil Rights of the Union 
of American Hebrew Congregations and the Independent Order B’nai B’rith. 





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tfU; 2s. 18 ji 


Press of Byron S. Adams, 
Washington, D. C. 


INTERNATIONAL LAW AND THE DISCRIMINA¬ 
TIONS PRACTICED BY RUSSIA UNDER 
THE TREATY OF 1832.* 

By Arthur K. Kuhn. 

Article I of the Treaty with Russia, concluded December 
18, 1832, provides: 

% 

There shall be between the territories of the high 
contracting parties, a reciprocal liberty of commerce 
and navigation. The inhabitants of their respective 
States shall mutually have liberty to enter the ports, 
places and rivers of the territories of each party, 
wherever foreign commerce is permitted. They shall 
be at liberty to sojourn and reside in all parts what¬ 
soever of said territories, in order to attend to their 
affairs, and they shall enjoy, to that effect, the same 
security and protection as natives of the country 
wherein they reside, on condition of their submitting 
to the laws and ordinances there prevailing, and par¬ 
ticularly to the regulations in force concerning com¬ 
merce. (U. S. Treaties in Force, 1904, p. 660.) 

The Government of Russia has taken the position that 
a treaty of commerce and intercourse, such as that of 1832 
with the United States, grants no greater rights to citizens 
of the United States, than is accorded to Russian citizens 
of the same “class” in Russia. Accordingly, a citizen, 
whether native born or naturalized, professing the Jewish 
faith, is denied a right of entry upon the sole ground that 
Russian subjects of the same faith are likewise denied the 
privilege of free ingress, egress and residence in Russia. 

^Prepared by request for the Board of Delegates on Civil Rights 
of the Union of American Hebrew Congregations and the Independ¬ 
ent Order B’nai B’rith. Mr. Kuhn is a member of the New York 
bar, is translator of Meili’s “International Civil and Commercial Law,” 
and American editor of Burge’s “Colonial and Foreign Law” _ and 
Sometime Lecturer on Private International Law at Columbia Univer¬ 
sity, New York. 







4 


The most meager reflection leads inevitably to the con¬ 
clusion that if this contention were permitted to prevail 
as a guiding principle of international relations, not a single 
treaty in force with reference to the protection of the rights 
of citizens of one country within the territory of another 
could be deemed any longer the source of any definite rights 
or privileges. However definite might be the right or 
privilege granted by treaty to the citizens of a foreign state, 
it could be rendered nugatory simply by denying the right 
or privilege to native citizens. 

The acceptance of any such principle would revolutionize 
the relations of states upon the basis of conventions, and 
would extend the class distinctions made in one nation, 
beyond the borders of that nation, to the territory of every 
other nation with which it had treaty relations affecting 
aliens. 

Russia first asserted the theory in 1862 in its diplomatic 
correspondence with Lord Russell representing the British 
Foreign Department. No report of this correspondence is 
to be found in the published record of British State Papers, 
but it is referred to, however, in the correspondence which 
passed in 1880 with reference to the case of Lewisohn, a 
British subject of Jewish faith, who was expelled simply 
by reason of the creed which he professed. Lord Granville 
at first took a vigorous stand against any discrimination, 
writing to the British Ambassador that: “The treaty be¬ 
tween this country (Great Britain) and Russia of the 12th 
January, 1859, applies to all Her Majesty’s subjects alike, 
without distinction of creed." (British State Papers, Vol. 
73, p. 833.) 

For some reason which does not clearly appear, Lord 
Granville afterwards surrendered his position in the matter 
and followed the precedent of 1862 and insisted only that 
British subjects should be placed on the same footing as 
Russian subjects of the same “class.” He did not admit 
the correctness of the principle as a guide for the interpreta- 


5 


tion of the treaty; he simply did not desire to overrule his 
predecessor. Indeed, he clearly enunciated the choice of 
principle which was involved, for he says: “The treaty is 
no doubt open to two possible constructions: the one, that 
it only assures to British subjects of any particular creed 
the same privileges as are enjoyed by Russian subjects of 
the same creed; the other, that the privileges are accorded 
to all alike without regard to the religious body to which 
they belong.” (British State Papers, Vol. 73, p. 845.) It 
has since become apparent that diplomatic considerations 
induced Great Britain to refrain from insisting on the con¬ 
struction of the treaty which she herself deemed correct. 

In striking contrast to the weak position finally taken by 
the British Government upon this question, prompted prob¬ 
ably by considerations of policy and expediency, rather 
than of international legal justice, was the attitude taken 
at the same time by the United States with reference to the 
same contention. The reporter of the British State Papers 
has included in the report of the correspondence in the 
Lewisohn case, an abstract of the correspondence passing 
between our Secretary of State, William M. Evarts, and 
Minister John W. Foster, in 1880, with reference to the 
attempted expulsion of Henry Pinkos, an American citizen 
of Jewish faith. In Mr. Evarts’ letter of June 28, 1880, 
he said: 

“In reply I have to observe that in the presence of 
this fact, that an American citizen has been ordered to 
leave Russia on no other ground than that he is the 
professor of a particular creed, or the holder of certain 
religious views, it becomes the duty of the Government 
of the United States, which impartially seeks to pro¬ 
tect all its citizens of whatever origin or faith, sol¬ 
emnly, but with all respect to the Government of His 
Majesty, to protest. As this order of expulsion applies 
to all foreign Jews, in certain towns or localities, at 
least, of Russia, it is of course apparent that the same 
is not directed especially against the government of 
which Mr. Pinkos is a citizen, and, indeed, the long- 


6 


standing amity which has united the interests of Rus¬ 
sia with those of this government would of itself forbid 
a remote supposition that such might be the case. Not¬ 
withstanding this aspect of the matter, the United 
States could not fail to look upon the expulsion of one 
of its citizens from Russia, on the simple ground of 
his religious ideas or convictions, except as a grievance, 
akin to that which Russia would doubtless find in the 
expulsion of one of her own citizens from the United 
States on the ground of his attachment to the faith of 
his fathers.” (Foreign Relations of the United States, 
1880, p. 876.) 

While the correspondence with reference to the attempted 
expulsion of Pinkos was proceeding, Pinkos left Russia 
with his family, because “he had made up his mind that 
Russia was no place for one of his creed, and that he pro¬ 
posed to establish himself in Liverpool, or return to the 
United States.” Notwithstanding this fact, Mr. Evarts 
had determined not to let the matter rest. No true Amer¬ 
ican can read his final letter of instructions, dated Septem¬ 
ber 4, 1880, without strong sentiments of pride and satis¬ 
faction at the brave, as well as just, position assumed by 
our Secretary. The letter so clearly sets forth the true 
interests and traditional policy of the United States with 
reference to the protection of its citizens in foreign coun¬ 
tries, that it will be well to the purpose to quote his letter 
in full (Foreign Relations of the United States, 1880, p. 
880) : 

“Department of State, 
Washington, September 4, 1880. 

Sir: I have to acknowledge receipt of Mr. Hoff¬ 
man’s No. 23 of the 11th ultimo in the Pinkos case. 

Notwithstanding the tenor of your No. 9 and of 
your note to the Department of July 24th last, as to 
the inexpediency of presently appealing to the Govern- • 
ment of the Czar in the sense of the instruction of 
June 28th last, touching the expulsion of citizens of 
the United States from Russia (or certain cities there- 


7 


of) by reason of their religious convictions, the state¬ 
ments of Mr. Hoffman’s No. 23, of August 11th last, 
are such that the Government of the United States 
would seem indifferent to the cause of its citizens in 
Russia did it neglect to make immediate remonstrance 
as set forth in said instruction of June 28th. Mr. 
Hoffman’s inference from the facts connected with 
Mr. Pinkos’ departure from Russia is that Mr. Pinkos 
had made up his mind that Russia ‘was no place for 
one of his creed.’ 

If the meaning of this is that a citizen of the United 
States has been broken up in his business at St. Peters¬ 
burg, simply for the reason that he is a Jew rather 
than a believer in any other creed, then it is certainly 
time for this government to express itself as set forth 
in the instruction above mentioned. It should be made 
clear to the Government of Russia that in the view of 
this government the religion professed by one of its cit¬ 
izens has no relation whatever to that citizen’s right to 
the protection of the United States, and that in the eye 
of this government an injury officially dealt to Mr. 
Pinkos in St. Petersburg on the sole ground that he is 
a Jew, presents the same aspect that an injury offi¬ 
cially done to a citizen of Russia in New York for the 
reason that he attends any particular church there 
would to the view of His Majesty’s Government. 

It is evident that the losses incurred by the abandon¬ 
ment of his business in St. Petersburg will afford Mr. 
Pinkos ground for reclamation, if no other cause can 
be shown for the official breaking up of his said busi¬ 
ness than the religious views he entertained. 

The direct application to have Mr. Pinkos indemni¬ 
fied, however, may be deferred until he shall make it 
appear what those losses were. 

I am sir, etc., 

Wm. M. Evarts.” 

The policy thus established was ably supported and re¬ 
asserted by Mr. Blaine. In a letter, dated July 29, 1881, 
to Mr. Foster, he reviewed the treatment of alien Jews 
in Russia since the reign of the Empress Catherine, and 


8 


disposed of the contention made by Russia in the following 
terms (Foreign Relations of the United States, 1881, p. 
1033): 

“These questions of the conflict of local law and 
international treaty stipulations are among the most 
common which have engaged the attention of publi¬ 
cists, and it is their concurrent judgment that where a 
treaty creates a privilege for aliens in express terms, 
it cannot be limited by the operation of domestic law 
without a serious breach of the good faith which gov¬ 
erns the intercourse of nations. So long as such a 
conventional engagement in favor of the citizens of 
another state exists, the law governing natives in like 
cases is manifestly inapplicable.” 

The State Department has consistently refused to accept 
the principle now contended for by Russia, not only in our 
diplomatic relations with that country, but also with other 
countries as well. 

Prior to the Constitution of Switzerland of 1874, under 
which religious equality is now guaranteed as effectually as 
in the United States, subjects of Jewish faith were pro¬ 
hibited from establishing themselves in certain Cantons 
and were under heavy disabilities in others. Representa¬ 
tions were made to Switzerland by several European coun¬ 
tries, as well as by the United States, in reply to which these 
Cantons maintained the right to impose the same disabili¬ 
ties on subjects of foreign nations with which Switzerland 
had concluded treaties of friendship, commerce and inter¬ 
course, as were imposed on natives of the same class in 
Switzerland. In opposition to this contention, Mr. Seward, 
our Secretary of State, entered into a voluminous corre¬ 
spondence with Mr. Fay, the American representative in 
Switzerland, instructing him to insist upon the rights of 
American Jews, notwithstanding the disabilities under 
which the particular Cantons had placed Jews of Swiss 
origin. 


9 


It must be recalled that the treaty under which the Swiss 
Cantons had maintained their contention was couched in 
language much more favorable to their position than any¬ 
thing contained in the Treaty of 1832 with Russia, j The 
Treaty with Switzerland of 1855 had been, at the time of 
its adoption by the Senate, the subject of opposition by 
President Fillmore. In his message transmitting the 
Treaty to the Senate, he objected seriously to the form in 
which it was presented and said: 

“On account of the tenor of the Federal Constitu¬ 
tion of Switzerland, Christians alone are entitled to the 
enjoyment of the privileges guaranteed by the present 
Article in the Swiss Cantons. But said Cantons are 
not prohibited from extending the same privileges to 
citizens of the United States of other religious per¬ 
suasions. 

It is quite certain that neither by law, nor by treaty, 
nor by any other official proceeding is it competent 
for the Government of the United States to establish 
any distinction between its citizens founded on differ¬ 
ences in religious beliefs. Any benefit or privilege con¬ 
ferred by law or treaty on one must be common to all, 
and we are not at liberty, on a question of such vital 
interest and plain constitutional duty, to consider 
whether the particular case is one in which substan¬ 
tial inconvenience or injustice might ensue. It is 
enough that an inequality would be sanctioned hostile 
to the institutions of the United States and inconsistent 
with the Constitution and the laws. 

Nor can the Government of the United States rely 
on the individual Cantons of Switzerland for extend¬ 
ing the same privileges to other citizens of the United 
States as this article extends to Christians. It is in¬ 
dispensable not only that every privilege granted to 
any of the citizens of the United States should be 
granted to all, but also that the grant of such privilege 
should stand upon the same stipulation and assurance 
by the whole Swiss Confederation as those of other 
articles of the convention.” (Richardson’s Messages 
and Papers of the Presidents, Vol. V, p. 98.) 


10 


In the form in which Article I of the Treaty was finally 
ratified, the objection of President Fillmore was only par¬ 
tially met. It reads as follows: 

“The citizens of the United States of America and 
the citizens of Switzerland, shall be admitted and 
treated upon a footing of reciprocal equality in the two 
countries, where such admission and treatment shall 
not conflict with the constitutional or legal provisions, 
as well Federal as State and Cantonal of the contract¬ 
ing parties.” Then follow the provisions relating to 
free establishment, exercise of commerce, etc. 
(United States Treaties in Force, 1904, p. 769.) 

Mr. Fay, under instructions from the Secretary of State, 
left no stone unturned to obtain for American citizens of 
the Jewish faith the same rights and privileges as were 
accorded to American citizens generally, and personally 
prepared a petition addressed to the various Cantons of 
Switzerland in behalf of his contention. This petition was 
translated into French and German and widely circulated 
throughout Switzerland. It was reported as an Executive 
Document. (No. 76, Thirty-sixth Congress, First Session, 
Vol. 12, p. 67.) It is not necessary to refer to it at length 
inasmuch as Mr. Fay was prevented from relying upon 
the strictly legal rights of the United States because of the 
peculiar limitations which it contained. The entire incident 
is made the subject of a special paper read before the Amer¬ 
ican Jewish Historical Society by Mr. S. M. Strook in 
1903 (“Switzerland and the American Jews,” Publications 
of the American Jewish Historical Society, 1903, p. 7). 

It is sufficient to say that Mr. Seward continued through¬ 
out to demand the removal of discriminations made on ac¬ 
count of religious faith, notwithstanding the unfavorable 
language of the Treaty of 1855. He continued his instruc¬ 
tions along this line to Mr. Fay’s successor, Mr. Fogg, who 
co-operated with the French Government. France, at that 
time, was particularly energetic in demanding full treaty 


11 


rights to its citizens of Jewish faith. In 1851, Louis Napo¬ 
leon, through the French Minister at Berne, sent a note in 
which he stated that France would expel all Swiss citizens 
established in France in case the two Cantons (Basle City 
and County) would insist on carrying out their law pro¬ 
hibiting the establishment of French citizens of the Jewish 
faith on their territory. (Allgemeine Zeitung des Juden- 
thums, December 15, 1851; January 1, 1852; S. M. Strook, 
op. cit., pp. 12-13). The matter was finally referred to a 
commission of the Senate of the Second Empire and in 
1864 a report was made through the chairman of the com¬ 
mission, Ferdinand de Lesseps, in the following terms: 

“No distinction may be recognized in the enjoyment 
of civil and political rights between a French Jew and 
a French Catholic or Protestant. This equality of 
rights must also follow a citizen beyond the frontier ; 
and the principles of our Constitution do not authorize 
the Government to protect its subjects in a different 
manner according to which faith he professes.” (See 
Debats Parlementaires, 1909, p. 3779.) 

As a result of this movement, the French Government 
finally repudiated the prior treaties which were unsatisfac¬ 
tory in failing to guarantee equal treatment to all French 
citizens, and a new treatv was obtained from Switzerland in 
which such a guarantee was expressly made by recognizing 
“the right of French subjects, without distinction of faith 
or worship, to travel, sojourn, and transact all lawful busi¬ 
ness, as freely as Swiss Christian residents of other Can¬ 
tons may do.” (Foreign Relations of the United States, 
1864, p. 401.) 

The victory which French diplomacy had won over the 
illiberalism of the Swiss Cantons solved the problem of the 
United States Government as well. In reporting upon the 
result of the ratification of the French Treaty, the United 
States Minister, Mr. Fogg, wrote to Mr. Seward, as 
follows: 


“The treaty just ratified secures, it is true, only the 
rights of French Jews, but it will be followed by trea¬ 
ties with other powers, and must, in the end, enfran¬ 
chise the whole race, since the Swiss authorities having 
taken the first step in a movement so obviously just, 
and so imperatively demanded by the spirit of the age 
and their own position as the vanguard of liberty in 
Europe, they cannot recede, but must go forward.” 
(Foreign Relations of the United States, 1864, p. 
402.) 

The correspondence of the Department of State with 
other countries besides Russia, discloses a consistent policy 
against permitting local discriminations in foreign countries 
to operate unfavorably upon our citizens because of re¬ 
ligious belief. Thus, in 1897, an application was addressed 
by the United States Consul at Jerusalem to the Turkish 
officials in charge of the Land Department there, for per¬ 
mission on behalf of one Lowenstein, a United States citi¬ 
zen, to purchase a small property consisting of a house 
and some land. The application was denied on the ground 
that Lowenstein was a Jew, and, under Ottoman law, pro¬ 
hibited from holding land. Under the sanction of Mr. 
Sherman, United States Secretary of State, a remonstrance 
was addressed to the Sublime Porte and a nullification of 
the order was demanded: 

“If an American citizen be denied the right to ac¬ 
quire real estate in this empire on the ground that he 
is alleged to be of a certain religious faith, the duty 
of the minister to his government would require him 
to protest against such discrimination as inadmissible. 
Equal rights under treaties are claimed for all Amer¬ 
ican citizens, regardless of the faith they profess.” 
(Mr. Angell, United States Minister, to Turkish Min¬ 
ister of Foreign Affairs, Foreign Relations of the 
United States, 1898, p. 1104.) 


13 


\ 


The action of Mr. Angell was approved by the Depart¬ 
ment of State, and Mr. Sherman afterwards expressed his 
gratification at the result of the remonstrance. {Ibid.) 

The United States has heretofore insisted upon the treaty 
rights of its citizens, irrespective of discriminations in 
foreign countries made not only on account of religion, but 
also on account of race or color. Thus, in June, 1882, Mr. 
Frelinghuysen, our Secretary of State, in writing to Mr. 
Hamlin, Minister to Spain, called attention to the fact that 
the Spanish Consul-General at New York had refused to 
vise the American passport of a colored citizen of the 
United States on the ground of his color. It seems that 
the refusal to vise was arbitrary, and the vise was ordered 
to be granted by the Spanish Government. The Secretary 
of State nevertheless took occasion to remark that there 
would be no good reason why a negro resorting to Cuba 
bearing a passport as an American citizen should be refused 
admission or be met by legal prohibitive measures such as 
depositing large sums as a guaranty. He afterward stated 
that if a case should be brought to his notice the Department 
would remonstrate against it “as imposing a race discrimi¬ 
nation not affected by treaty or recognizable under the 
amended Constitution.” (Moore, International Law Di¬ 
gest, Vol. 4, p. 109, quoting from MSS. Inst. Spain XIX, 
p. 139.) 

The normal relation of states, especially under condi¬ 
tions of modern life, even in the absence of treaty, is one 
of free intercourse. This was recognized by Vattel as 
early as the seventeenth century, when he contrasts the con¬ 
dition of China and Japan with that of Europe, where “the 
access is everywhere free to every person who is not an 
enemy of the state.” (Droit des Gens, 1, ii, c. viii, s. 100.) 

We would not wish to be understood as denying the 
theory of international law that in the absence of treaty, 
each state has the right to exclude aliens from its soil. This 
right is commonly spoken of as one of the essential at- 


14 


tributes of sovereignty. However, when rights of entry 
or residence have been extended by treaty to the subjects 
of a foreign nation, all the subjects of that nation are enti¬ 
tled to the benefit of the treaty, even though incidentally 
they receive greater privileges under it than native subjects. 

There is not lacking substantial European authority for 
the principle that religious liberty may be predicated in 
favor of aliens on the basis of treaties. G. F. von Martens, 
the great German publicist and diplomatist, who made the 
law of treaties his special study, says (translating from his 
Precis du droit des gens, 2d Ed. 1864, Vol. 1, p. 121) : 

“The degree of liberty accorded to other religions 
than those of the particular state differs according to 
the fundamental laws and treaties in effect with for¬ 
eign pozvers and, in default of them, it depends upon 
the will of each state guided by principles of a wise 
tolerance. This is true also with regard to the toler¬ 
ance accorded religious sects which have no connec¬ 
tion with the religion of the country, such as the So- 
cinians, the Anabaptists, the Moravian Brethren, etc., 
and rarely any question arises in the foreign relations 
of European countries as to their rights, as well as 
those of the Jews.” 

Even Russian authority is in substantial accord. Pro¬ 
fessor F. de Martens, late president of The Hague Peace 
Congress, and probably the most distinguished Russian 
authority of our generation on international law, seems 
to have been in substantial accord, although he may have 
been unwilling to effectuate the principle by application in 
practice. In his Traite de droit international (translated 
from the Russian into French by A. Leo, 1883, Vol. 1, p. 
447) he asserts that the state has complete power over 
aliens in its territory, and the conditions on which it will 
admit them. It may not place them, however, beyond the 
protection of law, nor subject them to general expulsion. 
Any nation guilty of this would take itself outside of the 


15 


community of nations. With this exception, even though 
the provisions be vexatious or completely different from 
those prevailing in any other state or countries, or incon¬ 
sistent with a sane or wise political administration, “aliens 
must nevertheless conform to them, unless the provisions 
respecting them arc in opposition to international treaties ” 
In a footnote he points to the action of Lord Granville in 
refusing to insist upon greater rights for a British subject 
than accorded to Russian Jews in Russia, to which we have 
already referred at length. He naturally is well satisfied 
with the British submission to the Russian contention, 
though it is difficult to see how the footnote in any way 
illustrates the text. He seems to have considered it a clear 
departure and exception to the principle which he himself 
enunciates. In concluding this branch of his discussion 
he says (translating) : “In reality each government is free 
to take all measures against aliens which it deems conve¬ 
nient, provided they do not violate its treaties and are not 
absolutely contrary to international relations.” 

As a matter of strict legal right then, each nation may, 
in the absence of treaty, exclude aliens from its territory 
or prescribe the conditions upon which it will admit them. 
But as a matter of comity, friendly intercourse and good 
faith between nations of the international community, the 
situation is different. Hall well says (International Law, 
5th Ed., p. 214) : “For the reason also that a state may do 
what it chooses within its own territory so long as its con¬ 
duct is not actively injurious to other states, it must be 
granted that in strict law a country can refuse the hos¬ 
pitality of its soil to any, or all, foreigners; but the exercise 
of the right is necessarily tempered by the facts of modern 
civilization. For a state to exclude all foreigners would 
be to withdraw from the brotherhood of civilized peoples : 
to exclude any without reasonable or at least plausible 
cause is regarded as so vexatious and oppressive that a 
government is thought to have the right of interfering in 


16 


favor of its subjects in cases where sufficient cause does not, 
in its judgment, exist.” 

Hannis Taylor has said that while no state can be com¬ 
pelled to open its doors to the citizens of another state, 
its power of refusing hospitality is subject: “To such re¬ 
taliatory measures as an abuse of the excluding or ex¬ 
pelling power may provoke.” (International Public Law, 
p. 231.) 

If such be the trend of modern international law even 
in the absence of treaty, then surely the Russian treaty 
should be liberally and not strictly construed. Russia pur¬ 
sues a policy and practice of general exclusion against par¬ 
ticular classes of United States citizens solely on account 
of their religious beliefs, no matter how high their charac¬ 
ter and reputation may be and irrespective of whether they 
are by any reasonable construction detrimental to the inter¬ 
ests of Russia. In the light of the tendencies of modern 
international relations, this constitutes a clear indication 
that the Treaty of 1832 is not being construed by Russia 
according to that standard of ubberima tides which one 
friendly nation owes to another in the performance of its 
conventions. 

It is sometimes suggested that the policy of the United 
States in excluding the Chinese constitutes an argument 
in opposition to the position which we are here urging. 
Without wishing at this time to discuss the justice or expe¬ 
diency of the Chinese Exclusion Acts in their present state, 
it is sufficient for the purpose of the present discussion to 
recall that the Exclusion Acts required a modification of 
our treaty relations with the Chinese Empire on more than 
one occasion. Twice did Congress attempt to pass bills 
which under a fair interpretation might have been deemed 
inconsistent with the obligations under the treaty and twice 
were such bills vetoed by the President. President Hayes 
vetoed the bill of 1879 as in contravention of the provisions 
of the Burlingame Treaty, and President Arthur likewise 


17 


vetoed the bill of 1882 which he termed “a breach of our 
international faith/' because in violation of the Treaty of 
1880. (Richardson, Messages and Papers of the Presi¬ 
dents, Vol. VII, p. 514, Vol. VIII, p. 112.) 

Since that time successive Acts have been accompanied by 
such new diplomatic arrangements with China as were 
necessary in order to protect the faith of the United States, 
notably among which was the Treaty of December 8, 1894, 
by which China consented to the absolute exclusion of 
Chinese laborers. 

The denunciation of a treaty is justified where one of 
the parties has been guilty of a substantial breach, or has 
so interpreted it that the rights and privileges granted 
under it are enjoyed by one side, while the complete per¬ 
formance of its obligations is rendered only by the other. 
(Hall, International Law, p. 352.) Even if we concede 
the legal contention made by Russia the treaty should never¬ 
theless be denounced by the one year’s notice provided for 
in the treaty itself (Art. XII). At the time it was passed, 
Russia’s attitude toward native as well as alien Jews was 
favorable and very different from that of the past half cen¬ 
tury. The treaty was not drawn in contemplation of any 
of the discriminations which are now practiced under it. 
If the treaty does warrant the interpretations now placed 
upon its language by Russia (which we earnestly deny) 
it commits the United States to a doctrine which is ex¬ 
pressly prohibited under its Constitution, its statutes, its 
fundamental institutions and its historic diplomatic policy. 

Furthermore, if distinctions of race or creed are per¬ 
mitted to enter into the status of our citizenship in foreign 
countries in respect of rights and privileges, it is inevitable 
that distinctions will likewise arise on the side of duties and 
obligations. The relationship of allegiance between the 
citizen and state is a mutual one. Thus, for example, a 
treaty of amity and friendship between two nations is bind¬ 
ing upon all citizens and no distinctions among them ought 


18 


to be or is permissible. Any citizen who violates his duty 
of neutrality subjects himself not only to the loss of his 
right to protection, but also to affirmative penalties. The 
Supreme Court has said, in Kennett v. Chambers, 14 How., 
38: 

'‘For, as sovereignty resides in the people, every 
citizen is a portion of it * * * and when that 

authority has plighted its faith to another nation, that 
there shall be peace and friendship between the citi¬ 
zens of the two countries, every citizen of the United 
States is equally and personally pledged.” 

If every citizen is to be “equally and personally” pledged 
to abide by a treaty of amity and friendship, every citizen 
should likewise be “equally and personally” benefited with¬ 
out discrimination under treaties relating to the citizens of 
his country. 

The treaty thus involves fundamental danger to the 
equality involved in republican institutions. It is for that 
reason that France is likewise awake to the distinction 
which Russia has endeavored to import into French citizen¬ 
ship upon the basis of the Treaty of 1874 between France 
and Russia, notwithstanding the plain terms of the con¬ 
vention of 1905 which provides that “no distinction shall 
be made, whatever be the religion.” On December 27, 
1909, a full discussion of these discriminations practiced 
by Russia took place in the French Chamber of Deputies. 
Mention was made of the incident between France and 
Switzerland during the Second Empire to which we have 
already referred, as well as to a precedent which occurred 
shortly after the Congress of Vienna of 1815. Austria 
undertook to treat Ottoman Jews differently from other 
Ottoman subjects because she treated her own Jews dif¬ 
ferently from her other subjects. The Sublime Porte pro¬ 
tested that she could not permit of the slightest difference 
being made between any Turkish subjects, no matter what 
their creed, and in September, 1815, M. de Metternich gave 


19 


Turkey satisfaction, and thenceforward all Turkish sub¬ 
jects were treated alike. 

At the conclusion of the debate, the Chamber of Deputies 
called upon the administration to undertake negotiations 
with Russia for an interpretation which would definitely 
set aside the objectionable discriminations. (Debats parle- 
mentaires, 1909, pp. 3763-3780; Am. Jewish Year Book 
for 1911, pp. 66-76.) 

It is dangerous to temporize in respect of legal principle 
with class, race, or religious discriminations. The United 
States, after a long and bitter struggle, has happily extir¬ 
pated from the body of its organic law all such discrimina¬ 
tions affecting its citizens. Such discriminations should 
not be permitted to enter by the back door, as it were, 
through weakness or vacillation in the enforcement of the 
rights of citizens in international relations. 



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